Tag: quantum

07 Jul

Dependant Support – Quantum of Support

Stuart Clark Support After Death Tags: , , , , , , , , , 0 Comments

Yesterday I blogged about the recent Deleon v. Estate of Raymond DeRanney (“Deleon“) decision wherein an individual who was not the Deceased’s biological or adopted child was declared to be a dependant “child” of the Deceased in accordance with Part V of the Succession Law Reform Act (the “SLRA“) due to the Deceased having shown a “settled intention” to treat the Applicant as their child during their lifetime. Although my blog from yesterday went into some of the detail of what the court considered when determining that the Applicant was in fact a “child” of the Deceased who was entitled to support, it did not get into the quantum of support that the Applicant was entitled to receive as a “dependant child”.

The factors that the court is to consider in determining the quantum of support for a dependant are established by section 62 of the SLRA, and include:

  • the dependant’s current assets and means;
  • the assets and means that the dependant is likely to have in the future;
  • the dependant’s capacity to contribute to his or her support;
  • the proximity and duration of the dependant’s relationship with the deceased; and
  • the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living.

In Deleon the Deceased died intestate with one biological child leaving an estate valued at approximately $1.5 million, which under normal circumstances would be distributed solely to the biological child on an intestacy. Upon being declared a dependant “child” of the Deceased in accordance with Part V of the SLRA, the Applicant attempted to argue that she should equally share the Deceased’s estate with the biological child akin to if she was a biological child of the Deceased on an intestacy, an argument which, if accepted, would result in the Applicant receiving approximately $750,000 from the Deceased’s estate.

In support of her position that she should be entitled to receive 50% of the Deceased’s estate in support, the Applicant cites to Supreme Court of Canada’s decision in Tataryn v. Tataryn Estate, in which the court confirms that it can consider “moral” obligations and what is “adequate, just and equitable” under the circumstances when determining the quantum of support, and that the court is not necessarily limited to the factors delineated in section 62 of the SLRA. The Applicant also pointed to the accustomed standard of living which she had enjoyed while previously living with the Deceased.

Upon reviewing the jurisprudence in reference to the Applicant’s circumstances, Madam Justice Dietrich ultimately determines that the appropriate sum of support to be paid to the Applicant is the lump sum of $40,955, with such an amount being justified as being enough to get the Applicant through the remainder of her University degree, with the Applicant being required to be independent thereafter. Such an amount is of course notably less than the approximate $750,000 sought by the Applicant in the Application.

The Deleon case provides an excellent reminder that just because you are a “dependant” of the Deceased it does not necessarily follow that you will receive a significant sum in any support payment, as the court will consider your specific circumstances when setting the quantum of support.

Thank you for reading and stay safe and healthy.

Stuart Clark

28 Oct

Will Challenge Litigation – Part 11 – Hull on Estate and Succession Planning #136

Hull & Hull LLP Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Litigation, Podcasts, PODCASTS / TRANSCRIBED, Show Notes Tags: , , , , , , , , , , , , , , , 0 Comments

 

Listen to Will Challenge Litigation – Part 11

This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the differences between quantum meruit and propriety estoppel. As with any add-on claims, the courts require solid corroboration. They also discuss claims of resulting trust and claims of constructive trust.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

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21 Oct

Will Challenge Litigation – Part 10 – Hull on Estate and Succession Planning #135

Hull & Hull LLP Estate & Trust, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Litigation, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, TOPICS Tags: , , , , , , , , , , , , , 0 Comments

Listen to Will Challenge Litigation – Part 10

This week on Hull on Estates, Ian and Suzana discuss extraneous claims that can arise during a will challenge. In particular, they talk about propriety estoppel and other situations where someone worked to their detriment in the context of an estate dispute. For these kinds of claims, you require solid corroboration. Next week, Ian and Suzana will address the differences between quantum meruit and proprietary estoppel.

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

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14 Oct

Will Challenge Litigation – Part 9 – Hull on Estate and Succession Planning

Hull & Hull LLP Estate & Trust, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Litigation, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, TOPICS Tags: , , , , , , , , , , , , , 0 Comments

 

Listen to Will Challenge Litigation – Part 9

This week on Hull on Estates, Ian and Suzana discuss other claims that can be made concurrent to a classic will challenge. In particular, they talk about quantum meruit claims and how these can be interpreted differently depending on the situation.

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

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06 May

Remember the Evidence Act!

Hull & Hull LLP Estate & Trust, Litigation, TOPICS Tags: , , , , , , , , , 0 Comments

How does one prove a negative?  This is a challenge facing many estates: after a person dies, individuals spring forth requesting compensation for services rendered on a quantum meruit basis or alleging that promises were made by the deceased.  A common example is a claim that one provided domestic services such as cleaning, shopping or laundry. 

The riddle of proving a negative is quite relevant to estates litigation because the star witness for the estate is usually, by definition, dead.  Fortunately, since estate trustees can’t prove negatives, they don’t have to.  Section 13 of the Evidence Act specifically addresses this scenario, requiring independent corroboration of evidence in claims against estates.   The provision is designed to prevent claims that consist of mere allegations, which are easy to make, difficult to refute and expensive to litigate.  There is a great deal of case law on what constitutes corroboration, the standard of proof and so forth but the provision is a great deterrent to frivolous claims.

It seems trite to say but the Act is worth a review, even for non-litigators.  It’s full of counter-intuitive gems that are easily forgotten: for instance, section 9 the Evidence Act states that witnesses are not excused from answering questions tending to criminate them under any Act of the Legislature.   

Have a great day,

Chris Graham

 

 

 

 

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